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09.25.13Professor Nelson Tebbe Featured as Frequent Commentator on Constitutional Law and Religious Freedom Issues

Recent headlines have brought constitutional law and religious freedom into sharp focus. As one of the country’s foremost experts in these areas, Professor Nelson Tebbe has been frequently called upon to share his expertise.

In an ABA Journal feature article this week, Professor Tebbe commented on complaints against school districts involving transgender students. Among several states attracting attention is Massachusetts, which currently has two pending bills aimed at diluting a 2011 gender identity law: one that would remove language allowing transgender individuals the right to use bathrooms and play on school sports teams of their choice, and another that would mandate that the law does not apply to bathrooms and locker rooms.

Supporters of the bills argue that being forced to refer to someone by gender identity, rather than by biological gender, could violate religious beliefs. Professor Tebbe said that such an argument would “likely fail as a matter of U.S. constitutional law,” as religions do not get exceptions unless specific groups are singled out. A religious challenge might have a better chance under the Massachusetts state constitution, but an individual must show he or she has been substantially burdened by the law in question, according to Professor Tebbe.

“My conviction is that the state would have a compelling interest,” he told the ABA Journal. “This is a situation where students across the country are really suffering and being subjected to widespread discrimination. Why not be sensitive to their identity issues?”

This week, Professor Tebbe also contributed to an online symposium on SCOTUSblog about Town of Greece v. Galloway. The case marks the first time in 30 years that the Supreme Court will consider a case dealing with legislative prayers. “Without a constitutional prohibition on government expression that effectively embraces a particular faith,” Professor Tebbe wrote, “American lawmakers will consider themselves able to celebrate monotheism or even Christianity as such, despite the presence of numerous religious minorities and nonbelievers who hold beliefs outside those traditions. Full and equal citizenship in a free society should mean more than that.”